Justice- Reforming the system

Everybody agrees that there is urgent need to reform the justice delivery system if the citizens are not to be alienated from the system and the State. The number of pending cases is piling and the number of judges at levels is critically inadequate. Add to it the growing feeling that nothing moves without bribes. The situation becomes alarming when the judges themselves become suspect in the eyes of the people.

by M. K. Dhar

The manner in which a section of the judiciary in India has conducted itself in recent years has raised questions about the quality, as

well as, delivery speed of justice. A feeling has grown that judges are becoming extremely touchy about criticism and safeguarding their privileges and feel offended when questions are raised about the personal integrity of some of them. The judicial system has, by and large, served the country well since Independence and fiercely defended the fundamental and human rights of citizens against encroachments by the executive. But, now, the entire judicial system is in need of reform and criticism of it, occasioned sometimes by controversial judgments, should not cause offence but should be well taken.

There are reasons, no doubt, about the excruciating delays in deciding cases, sometimes lasting decades, and also the caliber of some judges who are either not trained fully professionally, or exhibit carelessness is summing up and sifting evidence and coming to the right conclusions while delivering their judgments. Sometimes they feel helpless because evidence has been doctored and the prosecution has failed to establish the guilt of the accused, which leads to acquittal or token punishment. But it is only when some members of lower judiciary betray their oath and compromise their integrity that the need arises for a thorough overhaul of the judicial system with a view to improving the delivery system.

An ordinary citizen who, sometime or the other, visits a court comes back with the impression that nothing gets done without greasing somebody’s palm. This impression, based on actual experience, needs to be corrected if the citizen is to be ensured the protection of the law and the constitution. Often the wrong done by the lower judiciary is corrected on appeal to the higher courts, including the Supreme Court, unless the evidence has been so doctored by the prosecution and the helpless defendant has not been able to muster resources to defend himself, that justice is miscarried.

The need to clean up lower judiciary has long been recognized. As the report of Transparency International reveals, an estimated amount of Rs. 2,600 crore was paid in bribes to the lower judiciary in India during 2006. How it arrived at the figure is difficult to know, but the fact remains that corruption has seeped into the system, which sometimes not only leads to miscarriage of justice but, very often inordinate delays in its delivery. The report maintains that corruption has two manifestations one is corruption of judicial officers and the other is corruption in broader justice system. It concedes that the superior judiciary is relatively clean, though there are obvious exceptions.

The centre for Media Studies, which conducted a countrywide survey in 2005 on public perceptions and experiences of corruption in lower judiciary, found that bribes seemed to be solicited as the price for getting things done. The estimated amount paid in bribes in 2006 was around 2,630 crore. Money was paid to the officials in the following proportions; 61 per cent to lawyers, 29 per cent to court officials, five per cent to judges and five per cent to middlemen. How it arrived at the figure is difficult to know, but the fact remains that corruption has seeped into the system. The primary causes of corruption are delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws.

The delay in the delivery system can be judged by the fact that, last year, there were 33,635 cases pending in the Supreme Court and 33,41,040 cases in the High courts. There were 2,53,06,458 cases pending in 13,204 subordinate courts. This vast backlog leads to long adjournments and indolence in India’s judiciary and prompts people to pay to speed up the process. The ratio of judges is also abysmally low at 12 to 13 per one million people, compared to 107 in the United States, 75 in Canada and 51 in the United Kingdom. The delays and corruption has led to cynicism about the justice system. This erosion of confidence has deleterious consequences that neutralize the deterrent impact of law. People seek shortcuts through bribery, favours, hospitality or gifts, leading to further unlawful behaviour.

As regards the delays in courts, it needs to be borne in mind that almost all courts are woefully short of judges and therefore, cannot dispose of cases speedily. Although the sanctioned strength of the judges in 21 high courts in 725, there are 142 vacancies. Similarly, the number of sanctioned judges for district and sub-ordinate courts is 14,719, but there are only 11,951 judges in place. There are as many as 2.5 crore civil and criminal cases pending before these courts. What stands in the way of filling up the vacancies when the workload keeps increasing year after year is not known, though the need to economies on administrative expenditure should not be one of them. Unless this first steps is taken, one cannot expect any improvement in the number of pending cases, which will keep increasing, clogging the wheels of the justice system.

One argument is that a sufficient number of suitable judges is not available to fill up the vacancies because lawyers, who earn much more than Judges are reluctant to opt for the judiciary. Recruitment through the Indian Judicial Service is confined to the lower judiciary but, here too, a sufficient number of qualified people are not available to fill up the judge’s posts. This impinges on the efficiency of the entire justice system. Sometimes under trials, who would have got at the most a year in jail if convicted, languish in prisons for decades, without anybody caring for their fundamental or human rights.

The Supreme Court hears arguments on about 70 petitions every day and the judge’s work at home also writing their judgments, which are invariably long. They have also to hear review curative and arbitration petitions in their chambers. For all this work the Chief Justice of India gets a salary of Rs 33,000 a month, which is equal to the pay of a joint secretary to the Central Government. A  former CJ of the US Supreme Court rightly observed that the  dramatic erosion of judicial compensation will inevitably result in the decline in the quality of a person willing to accept a lifetime appointment as a federal judge. But, the Centre and the state seem reluctant to raise the salaries of judges across the board to increase recruitment, as well as, efficiency and dedication.

At the same time, the system for the appointment of judges, particularly, High Courts and the Supreme Court is not satisfactory. As former Union Law Minister Shanti Bhushan points out, among the collegiums of judges which appoint judges to the Supreme Court, many of them seem to have “their proteges to promote and usually the best people do not get selected. They are also often at loggerheads with each other, which also greatly delays the selection”. He has suggested the setting up of a National Judicial Commission as a permanent body for the appointment of and removal of judges. It should have wide ranging representation, including two houses of Parliament, to ensure independence and keeps checks and balances in place.

As regards conducting inquiries into allegation of misconduct or incapacity of a Supreme or High Court judge. A bill pending in Parliament seeks to appoint a National Judicial Commission. It also seeks to regulate the procedure for such investigation, inquiry and proof and to impose minor punitive measures. The Standing Committee of Parliament has made some good suggestions to be incorporated in the bill to increase its effectiveness. These need to be considered with an open mind to restore the people’s confidence in the judiciary and ensure its smooth and efficient functioning.